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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Plurinational State of Bolivia.
2. Date of entry into force of the New York Convention
27 July 1998.
The Convention was transposed into domestic law on 12 Aug. 1994.
(Sources: www.uncitral.org; Law No. 1588.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(b) commercial relationships?
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
The relevant national sources of law are as follows:
- Arbitration and Conciliation Law, No. 1770, 10 Mar. 1997 ('Arbitration Law');
- Code of Civil Procedure, 6 Aug. 1975;
- Civil Code, 6 Aug 1975;
- Constitution of the Plurinational State of Bolivia, 7 Feb. 200 ('Constitution').
C. Limitation periods (time limits)
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Bolivian law does not provide a specific limitation period for the commencement of recognition proceedings. However, applicants should consider that the general Bolivian limitation period may be invoked against recognition and enforcement.
(Source: Civil Code, Art. 1507.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The Bolivian Civil Code establishes a general statute of limitations of 5 years, applicable in the absence of any other specific provisions.
Interested parties should apply for recognition within 5 years from the date the award was formally notified to the parties involved in the arbitration.
The limitation period for enforcement also commences on the date the award was formally notified to the parties involved in the arbitration and is tolled with the service of any claim, decree or the execution of a lien.
(Source: Bolivian Civil Code, Arts. 1507, 1503.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The Bolivian Supreme Court has jurisdiction over the recognition of foreign awards.
(Source: Arbitration Law, Art. 82, para. 1.)
Jurisdiction over the enforcement of foreign awards lies with the judicial authority designated by the Bolivian Supreme Court at the domicile of the party against which recognition is sought or, failing that, the judicial authority at the place where the goods (assets) against which enforcement is sought are located.
(Source: Arbitration Law, Art. 83, para. 3.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
The Bolivian Supreme Court's acceptance of jurisdiction over the recognition of a foreign award is not subject to any legal requirements.
Once a foreign award has been recognized, a civil court can accept jurisdiction over its enforcement only if( i) the court has been designated by the Bolivian Supreme Court as the enforcing authority, (ii) the domicile of the party against which enforcement is sought lies within the court's jurisdiction or, failing that, (iii) the goods against which enforcement is sought are located within the court's jurisdiction.
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The decision granting recognition is obtained through inter partes proceedings.
Once an application for recognition has been notified to the Bolivian Supreme Court, the party against which recognition is sought has 10 days to respond. An 8-day evidentiary period then commences, after which the court has 5 days to issue its final decision granting or denying recognition of the award.
The respondent may oppose enforcement proceedings on the following limited grounds: (i) the existence of a cause for annulment provided in the Arbitration Law or in international arbitration conventions; (ii) the withholding or annulment of the award by the corresponding authority in the country where it was issued; or (iii) the award lacks the force of res judicata.
(Source: Arbitration Law, Art. 81.)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
The decision on recognition is not per se subject to any appeal, but all judicial decisions issued in Bolivia may be subject to what is called a constitutional recourse, which is filed either in the Superior District Court in the city of Sucre or before a lower judge in the same city. The resulting decision is reviewed by the Constitutional Court.
(Source: Law of the Plurinational Constitutional Tribunal, Art. 2, para. 2 and Art. 12, No. 7.)
The decision on enforcement can be contested in the Supreme Court on the grounds of either the existence of an annulment action or voluntary performance of the award.
(Source: Arbitration Law, Art. 84.)
(b) How many levels of appeal or recourse are available against this decision?
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
The interested party may seek enforcement before the judicial authority designated by the Bolivian Supreme Court once the order granting enforcement has been delivered to that judicial authority.
E. Evidence required
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
A copy of the agreement and of the arbitral award, both documents must be duly legalized. If the documents are not in Spanish, a translation signed by an authorized expert must be provided.
(Source: Arbitration Law, Art. 82.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The entire document.
(Source: Arbitration Law, Art. 82.)
(c) Are originals or duly certified copies required?
Duly certified copies.
(Source: Arbitration Law, Art. 82, para. 2.)
(d) How many originals or duly certified copies are required?
The applicant must provide one set of original or certified copies of the award and the agreement.
(Source: Arbitration Law, Art. 82, para. 3.)
(e) Does the authority or court keep the originals that are filed?
(a) Is it necessary to provide a translation of the documents supplied?
(Source: Arbitration Law, Art. 82, para.3.)
(b) If yes, into what language?
(Source: Arbitration Law, Art. 82, para. 3.)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes. According to Art. 82, para. 3 of the Arbitration Law, the translation must be certified by an authorized expert. In the absence of any jurisprudence on the question, it may be understood that the translation could be carried out and signed by an expert translator in the country of origin and the expert authorized by the Bolivian consular agent in that country.
(Sources: Decree Law No. 7458, 30 Dec. 1965; Supreme Decree 25356, 19 Apr.1999.)
Notwithstanding the above, it is also possible that the Supreme Court could require the translation to be signed by a court-appointed expert. In this case, a judicial translation process would have to be initiated before a Bolivian civil judge, which can take between one and three months.
(Source: Code of Civil Procedure, Art. 402.)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
The applicant must provide a full translation of the award and of the contract containing the arbitration agreement (the law refers only to the 'agreement', but in the sole case that has so far arisen a translation of the entire contract was provided to avoid possible objections, given the lack of clarity in the exact meaning of the law and relevant jurisprudence), including any texts in other foreign languages that they might contain.
F. Stay of enforcement
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
The Supreme Court may refuse recognition of a foreign award if the award is not yet binding for want of res judicata or has been annulled or suspended by the competent judicial authority in the state where it was issued-all of which must be proven by the party against which enforcement is sought.
(Source: Arbitration Law Art. 81, para. 1.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
The Supreme Court may stay recognition proceedings if proof is provided of the existence of an annulment action or voluntary performance of the award.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No such condition is imposed by Bolivian law.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
The award and the arbitration clause form part of public records. There is no provision in Bolivian law allowing requests to be made for them to be kept confidential.
(Source: Constitution, Art. 189, para. 1.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Bolivian law does not provide for a hearing in proceedings for either recognition or enforcement of awards.
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Judgments on recognition and enforcement are publicly available on relevant websites and in the Gaceta Judicial (Judicial Gazette).
(Source: Constitution, Art. 189, para.1.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
Bolivian law requires that the award be final and binding (res judicata).
(Source: Arbitration Law, Art. 81, para. 1, no. 2.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
Bolivian law does not distinguish between awards granting monetary relief and other kinds of relief for purposes of recognition.
At the enforcement stage, the award will be subject to the enforcement rules set out by Bolivian law for domestic monetary or non-monetary awards, as the case may be.
If the award orders the respondent to do or refrain from doing something to the benefit of the applicant or otherwise deliver goods to the applicant, the enforcement judge will make the appropriate order, including setting a time limit for compliance and penalties for failing to comply. (Source: Civil Code, Art. 1465.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
There are no legal provisions or court decisions specifically addressing this question. Under general principles of Bolivian civil law a creditor may totally or partially waive his/her rights to collect.
Also, the Supreme Court may grant only partial recognition of an award, e.g. when some of the decisions in the award have been become res judicata in Bolivia.
(Source: Civil Code, Art. 1318, para. 2, no. 3.)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
The setting aside of an award by a court in the country where it was made may be a ground for refusing recognition under Bolivian law, in which case enforcement would not be possible.
(Source: Arbitration Law, Art. 81, para. 1, no. 2.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
There are no other significant procedural or practical requirements under Bolivian law given that the process for recognition and enforcement of foreign arbitral awards is still a novelty in Bolivia.
Rodrigo Rivera, Jose Carlos Bernal